Abdulwasiu Alfa Interventions At NBA Kano Law Week


The topic of concern is a broad one. Of course, societally and professionally, innovations abound. This is only a testament to the ever dynamic nature of the human society, which would always have a bearing, directly or indirectly, on other sectors and subsets, which must necessarily include the legal profession. In view of the need for specificity, I will approach this topic from the perspective of digitization, and more particularly, virtual and electronic litigation processes, as innovations with tremendous impacts on the administration and delivery of justice in Nigeria.
This would include a consideration of the successes and challenges associated therewith, as well as an appraisal of some of the concerns arising from their adoption, within the framework of this discussion.
Generally, the traditional mode of court proceedings in Nigeria, prior to the introduction of virtual and electronic litigation processes, involved physical appearances and paper-based documentation. Lawyers, judges and parties involved in a case were required to physically appear in court for proceedings. Court documents, including pleadings, motions, affidavits, and evidence, were typically prepared and submitted in a hard copy format.
Lawyers and litigants had to file and serve these documents physically, often requiring multiple copies for the various parties involved in the case.
Witnesses and parties were required to be physically present in court to present their evidence and testimonies.
This meant that individuals had to travel to the court and be available on specific hearing dates, which could be time consuming and expensive. Lawyers presented their arguments orally in court, engaging in verbal interactions with judges and opposing counsel.

Even though the above narratives are presented in the simple past tenses, there is no assumption or implication that these practices are no longer in place.
They are undeniably still the norm, at least, in most jurisdictions of the country.
On the other hand, virtual and electronic litigation processes largely involve leveraging on electronic gadgets and software for the filing and service of court processes, as well as for the hearing and determination of disputes between litigants, as the case may be.
The integration of technology has gradually transformed the way litigation is conducted, offering alternatives to physical appearances and paper-based documentations, thereby enhancing efficiency and accessibility in the Nigerian legal system. The historical evolution of virtual and electronic litigation processes in Nigeria has been driven by the need to improve efficiency, reduce delays, and enhance access to justice. In Nigeria, virtual court proceedings have been used to decongest the courts and improve access to justice, the necessity of which may be traced to certain events, most profound of which was the recent Covid-19 pandemic which led to an unprecedented shutdown of physical activities in virtually all sectors, the judiciary inclusive.
This led to the Nigerian Courts introducing and increasing the practice of utilising Remote Hearings and Electronic Filings (E-Filing) in their Rules and Practice Directions. The Remote Hearings take place either via Zoom, Skype, or any other audio-visual communication channel, while all Court processes are filed and served electronically.
The Case management system was however introduced in Nigeria in 2015 to consolidate all information pertinent to a case. It is the coordination of court processes and resources to move cases in a timely manner from filing to disposition to ensure that justice is provided in a prompt and affordable manner.
With this, the tools which may be necessary for the appropriate follow up of a matter are supplied. It was designed to guide staff and enforce court procedures and rules, resulting in a more just and equitable legal system for the nation. The overall aim was to preserve the sanctity of courts, timely disposal of cases, reduce stress of practice for lawyers and the cost of the judicial process.The impacts of these innovations in enhancing the administration and delivery of justice in Nigeria, have been massive. Virtual Court Proceedings can significantly reduce case processing delays, leading to quicker resolutions and increased access to justice. The proceedings therefore portend substantial cost-savings implications for both the judiciary and litigants.
This need no further emphasis, as eliminating the need for physical court appearances would invariably assuage travel expenses and reduce other associated costs.
Another prominent impact of these innovations can be seen within the context of promoting access to justice.Virtual court proceedings have the best propensity at overcoming geographical barriers, enabling individuals residing in remote areas to engage in legal proceedings without the need to travel long distances. Necessarily, this enhances accessibility by promoting equality before the law, a threshold element of the rule of law. Transparency and accountability within the justice system are other positives associated with these innovations, if adopted with caution.
This is inseparable from the ability to store electronic court records which can ensure accurate and consistent documentation, guarding against loss of or tampering with
physical files. Arguably, the use of technology can minimize human errors and biases, leading to fairer decision-making processes.
On a more construed perspective, digitalization will require significant investment in legal and court administration systems in Nigeria that have been persistently underfunded, while, however, reducing the aggregate costs of access to justice, and, if implemented with care, offer the opportunity to increase peoples’ familiarity with the administration of justice, thereby increasing confidence in the integrity of courts and legal systems more generally.
Notwithstanding the foregoing, these innovations are not without their challenges and shortcomings, especially when considered vis-à-vis our peculiarities as a nation. Of huge concern is the potential resistance from conservative practitioners and stakeholders who are rigid towards upholding the traditional patterns and modes of legal practice.
The adoption of virtual court proceedings requires a paradigm shift in legal proceedings, which may face opposition from these classes who are accustomed to conventional court systems.
These resistances can stem from concerns about the erosion of courtroom decorum, loss of the human touch in legal proceedings, and potential biases in virtual interactions.
From another consideration, there are evidential issues surrounding virtual court hearings. These evidential concerns include issues of credibility of witnesses – especially at the trial court, and the possibility of the adoption of tricks and insincere practices to frustrate efforts during unfavourable cross-examinations, among others.
The proponents of this argument posit that conferencing technologies, for instance, do not filter voice frequencies associated with human emotions, which are essential determinants of credibility.
In this regard, there is the view that virtual hearings could never be effective enough for the conduct of proceedings which would involve the taking of witnesses.
Furthermore, it is a notorious fact that Nigeria, like other third world countries, currently faces challenges in terms of internet penetration, especially in rural areas, which may affect the wider accessibility of virtual court proceedings. This is in consideration of the fact that technological infrastructures are required for successful implementation, out of which include, adequate internet connectivity, reliable video conferencing platforms, and functional electronic systems, which are all essential prerequisites.
In addition, data security and privacy are critical factors that need to be addressed, particularly, in view of the fact that protecting sensitive information and ensuring secured online transactions are vital in maintaining public trust in the justice system by safeguarding personal data from potential breaches.
It is my considered view that, most times, the prevalent conclusion is that Nigerian laws do not develop in line with technological advancements. My basis for this, is that, while a number of other jurisdictions, like Canada, had, as far back as 1990, made provisions for video-conferencing in their Civil Procedure Rules, issues of such in Nigeria only arose significantly pursuant to the emergence of the recent pandemic.
It remains to
assert that it could be logically opined that our move as a nation in this regard is quite belated. Remote hearings should have been a reality before a global pandemic. The world bows down to the demanding, dynamic and fast paced needs of technology, and we ought not to wait for our walls to be pressed against the wall before we improve and innovate. This is a functional system, but there is room for more.
As I conclude, let me pre-emptively address a concern that has been notorious whenever issues of electronic filing and virtual hearings are raised, especially in relation to the latter, in Nigeria. The agitations seem to revolve around the constitutionality of remote proceedings, in juxtaposition with the constitutional provision that proceedings should be in public – in other words, whether “public” is restricted to court rooms or it accommodates the virtual space in the contemplation of the constitution. It is my unequivocal position that virtual court proceedings are public, given that they are open to parties, their counsel who are informed of the dates, and members of the public who decide to participate are not excluded from doing so. What satisfies the constitutional requirement of court proceedings held in public is the accessibility of the public to the court proceedings.
The standard should be the test of accessibility
, by which consideration a court may sit in a physical courtroom and decides to exclude members of the public from attendance, while another judge may sit virtually and does not exclude the participation of members of the public.
Clearly, the la
tter accords with the constitutional principle of fair hearing, while the former violates same. Hence, it is more of a factual question than the practice itself.
Although there is, at the moment, no binding judicial authority on this subject, the constitutionality of virtual court proceeding was challenged in AG Ekiti State v. AG Federation (unreported Suit No SC/CV/261/2020) and AG Lagos State v. AG Federation (unreported Suit No SC/CV/260/2020) where the Supreme Court was asked to determine if such proceedings are lawful and not in variance with provisions of the constitution.
The Supreme Court opined that virtual court proceedings enjoy the presumption of regularity and is
encouraged as long as it is ‘convenient’ for the judges. It was the position of the Court that the suits in question were premature, speculative and with no valid cause of action.
The suits were
thereupon withdrawn by the Plaintiffs and consequently struck out by the Court. Notably, the decisions of the Supreme Court in these cases are deemed advisory opinions, by virtue of which, judges are encouraged to confine to virtual proceedings where convenient, until such time as the National Assembly concludes amendments on the relevant laws to accommodate these realities.
It can be argued that, though the pronouncements of the Supreme Court regarding virtual hearing are rulings and not judgments, it is a pointer to what its judgment would be when a matter regarding infringement of right concerning virtual hearing occurs (that is when there is a substantive case before it). The likely judgment would be that virtual court hearings are not unconstitutional.
It is on this note that I submit that the innovations of digitization within the legal profession is a welcome development, buttressing the dynamics of law vis-à-vis the vicissitudes of the human society. Its overall impacts on the administration and delivery of justice have been glaring.
There may be challenges and issues of adaptation. But these are a part of the processes towards an ideal society, afortiori, an ideal legal profession. I implore us to always bear in mind that, ours is a functional system, but there always still room for more.
Thank you.

Abdulwasiu Alfa, Esq.
Past Chairman NBA, Maiduguri Branch.

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